"I won't comment on what you said is right or wrong, but you will first explain the constituent elements of legitimate defense." After Fang Yi finished speaking, he looked at her with a smile.

"There are five elements of justifiable defence:

1. There must be an actual unlawful violation.

2. The unlawful infringement must be ongoing.

3. The act of defence must be carried out against the wrongdoer himself.

4. Defence must be aimed at protecting the State, the public interest, the person and property of oneself or others, or other rights from an ongoing unlawful offense

5. The defence must not clearly exceed the necessary limit and cause significant damage. Except, of course, for special defense. Zhou Ying thought for a moment and said the elements of legitimate defense like an endorsement.

"Did the victim in this case, Yan Jianshun, actually commit unlawful infringement?" Fang Yi asked.

"Like...... There is no illegal infringement. But there were indeed people who wanted to break into the house and enter the defendant's house before......" Zhou Ying finished speaking, and looked at Fang Yi in a daze.

"You mean, the moon is dark and the wind is high, and due to environmental restrictions, the defendant thinks that Yan Jianshun is the one who came here before and broke into the house, right?" Fang Yi asked.

"yes, that's what it means." Zhou Ying couldn't stop nodding.

"What you said is called a hypothesis, the victim did not hold any murder weapon in his hand, nor did he attack, and according to the defendant's recollection, the gate of the orchard was a wooden fence, and they may not have closed it in a hurry, so how can the victim's unlawful infringement be determined?

If the unlawful infringement does not really exist, but is only the defendant's subjective imagination or speculation, believing that some kind of unlawful infringement has occurred, and making a 'defense' act against the victim based on this misunderstanding, this situation is called "imaginary defense" in criminal law theory. After Fang Yi finished speaking, he glanced at her, picked up the teacup and began to drink tea, letting Zhou Ying digest what he said just now.

"Lawyer Fang, what are the characteristics of this hypothetical defense? Tell me about it.

I thought I had heard it from my teacher during the exam before, but ...... You also know that back then, it was all about exams, and now it's about making money for long years. Zhou Ying smiled and took out a notebook and pen, ready to record.

"Okay, I'll explain it to you, when I finish speaking, you take this case and compare it, you must practice it, otherwise even if you memorize the entire criminal law, it will be useless." Fang Yi said with a smile.

Zhou Ying nodded like a chicken pecking at broken rice, and recognized Fang Yi's words very much.

"In general, hypothetical defense has four characteristics:

1. Subjectively, the perpetrator has the intent of legitimate defense, believing that he is exercising legitimate defense against the unlawful offender.

2. Objectively, there is no 'unlawful infringement' in practice.

3. It has a certain degree of social harm, that is, the 'defensive' conduct of the actor who carried out the hypothetical defense objectively infringed upon the personal or other rights of the person who did not commit the unlawful offense.

4. The perpetrator's hypothetical defensive act has the effect of endangering society. ”

After speaking, Fang Yi saw that the pen in Zhou Ying's hand was constantly writing, and he studied very seriously, and then said: "Forget it!" Buy one, get one free, I'll expand your knowledge again, imaginary defense often happens in two situations:

First, it occurs when there is no wrongful infringement at all. For example, when walking at night and facing a person head-on, because robberies often occur in the vicinity, the perpetrator mistakenly believes that the person is not good for him, so he implements 'defense' and strikes preemptively.

Second, in the process of legitimate self-defense, 'defense' is exercised against other persons who have not participated in the unlawful offense. For example, after one party is beaten, it mistakenly believes that the third party who came to persuade him to fight is an accomplice, and implements a counterattack to 'defend'.

However, you should note that it is not the perpetrator's subjective belief that there has been an infringement that necessarily constitutes an imaginary defence. Hypothetical defense must be premised on a certain degree of objectivity and must have a certain rational basis. Otherwise, it can easily be found guilty of intentional injury or intentional homicide. ”

"Lawyer Fang, is there anything else?" Zhou Ying asked without stopping her pen and raising her head.

"Greed can't chew more! You must understand this knowledge point and eat it thoroughly, but you can't swallow dates.

If you can learn one or two knowledge points in each case, within three years, your professional ability will be a few streets away from the same batch of trainee lawyers, work hard! Barrister of the future. Fang Yi said with a smile.

"As soon as you say that, I suddenly feel that my body is light, if it weren't for this floor blocking, I would have been able to go to the sky." Zhou Ying laughed.

"Stop! The defense statement of this case has been handed over to you, and I can tell you that if you mess up the defense statement of this case, I will go to the boss next door and deduct your salary. Fang Yi pretended to be serious.

"Gotcha! My little mood was knocked down by you all at once. Well, I'm going to live up to your expectations for the sake of my poor trainee solicitor's salary. After speaking, Zhou Ying left the office with the case file.

Fang Yi looked at her departing back: It's good to be young!

Early the next morning, Wu Caiying came to the law firm, and this time Fang Yi asked Zhou Ying to call her over, mainly to communicate the defense plan.

"Lawyer Fang, what I am most concerned about is the crime of intentional injury charged by the procuratorate and the crime of negligence causing death you mentioned, which of the two crimes will be sentenced more heavily.

As for what crime is convicted, I don't care, and what rights are deprived has little to do with us ordinary people. Wu Caiying looked at Fang Yi with blank eyes.

"I'll tell you about the law, and you'll probably understand.

Article 233 of the Criminal Law stipulates that a person who causes death by negligence shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; where the circumstances are more minor, a sentence of up to three years imprisonment is to be given.

Article 234 stipulates that whoever intentionally injures another person's body and causes death shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death.

The maximum sentence for the crime of negligence causing death is seven years. The crime of intentional injury (causing death) generally starts at 10 years in prison and can be sentenced to death. In comparison, the court will sentence a lesser sentence for the crime of negligence causing death. Fang Yi explained.

"Oh, I see. In other words, if he is sentenced for the crime of causing death by negligence, my husband will be sentenced to a maximum of seven years......" Wu Caiying thought for a moment and asked, "Lawyer Fang, how sure are you?" ”

"Judging from the current facts of the case, I think it is very likely, and it depends on how the judge decides, so I can only say that I will do my best. I don't dare to give you any guarantees. Fang Yi said.

"Well, I don't know the law, you are a lawyer, I listen to you." Wu Caiying nodded, and suddenly said, "By the way, Lawyer Fang, last time you asked me to ask Yan Jianshun's family to write a letter of understanding, but the other party didn't write it." Will this affect my husband's case? Is there anything else you can do? ”

"Well, it will definitely have a certain impact on the sentencing, but if the other party doesn't give a letter of understanding, it can only be like this first." Fang Yi looked helpless, if the victim did not give a letter of understanding, what could the lawyer do.

(End of chapter)